Marquez v. USA
ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 10 Report and Recommendation. ORDERED that Marquez's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All other motions not previously ruled on are hereby DENIED. Signed by Judge Amos L. Mazzant, III on 1/24/2017. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
EDWARD JOE MARQUEZ, JR., #12126-078 §
UNITED STATES OF AMERICA
CIVIL ACTION NO. 4:16cv631
CRIMINAL NO. 4:05CR00082-001
ORDER OF DISMISSAL
Petitioner Edward Joe Marquez, Jr., a prisoner confined at F.C.I. Ft. Worth, brings this motion
to vacate, set aide or correct his sentence pursuant to 28 U.S.C. § 2255. The motion was referred to
United States Magistrate Judge Christine A. Nowak, who issued a Report and Recommendation (Dkt
#10) concluding that the motion should be denied. Marquez has filed a response, which is construed
as objections (Dkt #12).
Marquez is seeking relief based on Johnson v. United States, 135 S. Ct. 2551 (2015). He was
not, however, convicted of the offense of felon in possession of a firearm and as an armed career
criminal; thus, Magistrate Judge Nowak correctly found that Johnson does not apply to him. To the
extent that he is seeking relief based on an extension of Johnson to the sentencing guidelines, the Fifth
Circuit has rejected such arguments and found that it is bound by its own precedent unless and until
that precedent is altered by a decision of the Supreme Court. In re Harris, No. 16-40938, slip op. at
1 n.1 (5th Cir. Aug. 16, 2016) (citing Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986)).
Marquez’s response does not address Magistrate Judge Nowak’s findings and conclusions; instead,
he asks the Court to amend the judgment in his criminal case. The objections are nonresponsive.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections raised by Marquez to the Report, the Court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct and Marquez’s objections are
without merit. Therefore the Court hereby adopts the findings and conclusions of the Magistrate Judge
. as the findings and conclusions of the Court. It is accordingly
ORDERED that Marquez’s motion to vacate, set aside or correct his sentence pursuant to
28 U.S.C. § 2255 is DENIED and the case is DISMISSED with prejudice. A certificate of
appealability is DENIED. All other motions not previously ruled on are hereby DENIED.
SIGNED this 24th day of January, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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